Stars may be aligning for transparency legislation

House Republicans and Senate Democrats may finally have found something on which they are both so exercised about that they may actually get together and do something: transparency.

Republican anger and distrust over lost IRS emails, bipartisan upset over secret National Security Agency surveillance and concerns about the White House’s failure to notify Congress of plans to swap five Taliban prisoners for Army Sgt. Bowe Bergdahl are contributing to an atmosphere on Capitol Hill that makes laws to force more openness on the executive branch look appealing.

Text Size

-

+

reset

Some of the hottest recent controversies, ranging from delayed care at the Veterans Administration to the attacks on the U.S. diplomatic compound at Benghazi, have raised serious questions about mechanisms to keep tabs on what the government is up to. That all contributes to a sense that the political stars may be aligning in favor of new transparency measures.

“I mean if there’s ever a need to be more transparent, it’s now,” said Sen. Lindsey Graham (R-S.C.). “If it’s not this year, I never see it happening, given what’s happened.”

For Republicans, legislation holds the potential to make a more substantial impact on President Barack Obama’s executive power than the lawsuit against the president that House Speaker John Boehner is planning over alleged executive overreaches. For Democrats, advancing transparency bills could fulfill open-government principles many have long endorsed and please traditional allies in good-government groups.

Midway into Obama’s second term, pro-sunshine measures could promote more openness in government deliberations and could also look attractive to a president increasingly focused on his legacy and still facing criticism that he’s failed to deliver on promises to make his administration the most transparent in American history.

“It’s no coincidence that one of the most secretive administrations in our history has favored special interests and pursued policies that could not stand up to the sunlight. As president, I’m going to change that,” Obama said in a 2007 campaign speech to Google workers.

However, a bill Obama introduced in 2008 to expand disclosure even further died, and his administration has not exercised its power to take executive action to implement the key advances it proposed.

“There have been limitations in take-up of the reforms the administration has tried to spread through the executive branch,” said Gavin Baker of the Center for Effective Government. “There have been great policies and mixed implementation. … Legislation lets you kind of bring in the big hammer.”

At the forefront of the agenda for transparency advocates is a Freedom of Information Act reform bill introduced last month by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. John Cornyn (R-Texas) that could pry open more executive branch documents. The bill would make a key change to the law: allowing a judge to override claims that disclosure could inhibit executive branch decision making.

Journalists and other regular FOIA requesters say the “deliberative process” exemption is overused and often undermines the entire purpose of the law by giving agencies virtually unlimited discretion to wall off documents from public view.

In addition to the Cornyn-Leahy bill, others are making notable progress on the Hill.

A bill to speed access to presidential records and make sure official emails aren’t lost by being routed through private accounts cleared the House in January on a remarkable 420-0 vote. A Senate committee approved the measure on a voice vote in May.

There have also been signs of new interest in Congress in another form of transparency legislation: a so-called shield law that would protect journalists from having to testify about their sources in federal court.

While Republicans are often critics of the mainstream media, there are indications some in the GOP House majority are willing to move toward greater protections for the press if it means more scrutiny of the Obama administration. In May, the House voted, 225-183, for a broad appropriations rider to prevent the Justice Department from subpoenaing journalists for their confidential sources. A total of 53 Republicans joined with 172 Democrats to approve the measure.

Sen. Chuck Schumer (D-N.Y.) has predicted that a more refined shield law that has the endorsement of the Obama administration will pass the Senate this year.